Callahan v. Board of Appeal on Motor Vehicle Liability Polices and Bonds , 90 Mass. App. Ct. 196 ( 2016 )

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15-P-475 Appeals Court
ELEANOR CALLAHAN vs. BOARD OF APPEAL ON MOTOR VEHICLE
LIABILITY POLICIES AND BONDS & another.1
No. 15-P-475.
Suffolk. February 1, 2016. - September 12, 2016.
Present: Cohen, Carhart, & Kinder, JJ.
Board of Appeal on Motor Vehicle Liability Policies and Bonds.
Motor Vehicle, Board of Appeal on Motor Vehicle Liability
Policies and Bonds, Operating under the influence, License
to operate, Homicide. Registrar of Motor Vehicles,
Revocation of license to operate. License. Administrative
Law, Decision.
Civil actions commenced in the Superior Court Department on
March 31, 2011, and January 21, 2014.
After consolidation, the case was heard by Edward P.
Leibensperger, J., on a motion for judgment on the pleadings,
and a motion to dismiss was also heard by him.
Martin P. Desmery for the plaintiff.
Robert L. Quinan, Jr., Assistant Attorney General, for the
defendants.
1
Registrar of Motor Vehicles.
2
COHEN, J. The plaintiff sought judicial review of a
decision of the Board of Appeal on Motor Vehicle Liability
Policies and Bonds (board) denying her application for
reinstatement of her driver's license. On cross motions for
judgment on the pleadings, a judge of the Superior Court ruled
in favor of the board, and the plaintiff appealed to this court.
The plaintiff argues that the board erred in determining that
her 1989 conviction of "driving while ability is impaired," in
violation of the New York State Vehicle Traffic Law (VTL), is
"substantially similar" to a Massachusetts conviction of
operating a motor vehicle while under the influence of
intoxicating liquor (OUI), thereby subjecting her to lifetime
revocation of her driver's license as a result of her subsequent
conviction of motor vehicle homicide while OUI. The plaintiff
also argues that the board lacked the authority to reconsider an
earlier decision granting her a restricted, hardship license.
For the reasons that follow, we affirm.
Background. The relevant facts are drawn from the
administrative record and are not disputed. On October 30,
1988, the plaintiff was charged in Lewisboro, New York, with
driving while intoxicated per se, pursuant to VTL § 1192.2;
driving while intoxicated, pursuant to VTL § 1192.3; and driving
left of the pavement marking, pursuant to VTL § 1126a. These
charges were resolved on January 23, 1989, when the plaintiff
3
pleaded guilty to the lesser charge of "driving while ability is
impaired" (DWAI), in violation of VTL § 1192.1, and was assessed
a fine of $250. According to a document entitled "Certificate
of Conviction," issued by the Justice Court in Lewisboro, the
plaintiff's guilty plea to DWAI resulted "in full satisfaction
of all charges."
On January 6, 1998, while driving under the influence of
alcohol in Boxboro, Massachusetts, the plaintiff's vehicle
struck and pushed a parked motor vehicle, causing it to hit a
passenger who had just stepped out of that vehicle; the
passenger later died of her injuries. The Boxborough police
promptly filed an "immediate threat complaint" with the
Registrar of Motor Vehicles (registrar), which resulted in the
indefinite suspension of the plaintiff's driver's license. On
April 6, 1999, the plaintiff pleaded guilty to homicide by motor
vehicle while OUI, in violation of G. L. c. 90, § 24G. She
received a sentence of two and one-half years in the house of
correction, one year to be served and the balance suspended
during a ten-year probationary term. Thereafter, in accordance
with G. L. c. 90, § 24(1)(c)(4), as amended through St. 1982, c.
373, § 4,2 the registrar imposed a lifetime revocation of the
plaintiff's driver's license, effective June 7, 1999.
2
The plaintiff does not dispute that § 24(1)(c)(4) has been
in effect at all times relevant to this case. Accordingly, any
4
The operative language of § 24(1)(c)(4) is convoluted:
"[N]o new license shall be issued or right to operate be
reinstated by the registrar to any person convicted of a
violation of [OUI] . . . at any time after a subsequent
conviction of such an offense, whenever committed, in case the
registrar determines in the manner aforesaid that the action of
such person, in committing the offense of which he was so
subsequently convicted, caused an accident resulting in the
death of another." However, its meaning is not in doubt. As
explained in Stockman v. Board of Appeal on Motor Vehicle Liab.
Policies & Bonds, 62 Mass. App. Ct. 159 (2004), the statute
prohibits the registrar from reinstating the driving privileges
of any individual with "two convictions of driving while
intoxicated, coupled with a determination by the registrar that
the second commission of that offense ('the action of such
person, in committing the offense of which he was so
subsequently convicted') caused a fatal accident." Id. at 161.
After completing probation, the plaintiff applied for
reinstatement of her license. The registrar denied the
application, and, following a hearing, the board affirmed. The
confusion resulting from what the Supreme Judicial Court has
characterized as a "clerical error" in St. 2005, c. 122, § 6A,
known as Melanie's Law, is of no concern here. See Commonwealth
v. Maloney, 447 Mass. 577, 584 (2006). See also Burke v. Board
of Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App.
Ct. (2016).
5
plaintiff then sought review in the Superior Court, pursuant to
G. L. c. 30A, § 14. The first judge to consider the matter
vacated the board's decision and remanded for further
consideration whether the DWAI guilty plea qualified as a
conviction for purposes of G. L. c. 90, § 24(1)(c)(4), and
whether the board should exercise discretion to modify the
registrar's decision, pursuant to G. L. c. 90, § 28. After a
remand hearing and a period of nearly one year when the case
remained under advisement, two members of the three-member panel
issued an order dated August 16, 2013, reinstating the
plaintiff's right to operate with restrictions.
Within a few weeks, however, and before the reinstatement
took effect, the same two members issued a second order, dated
September 11, 2013, withdrawing the prior order and scheduling a
de novo hearing on the merits. The second order explained that
"one sitting board member was unable to complete deliberations
on this matter," and that "justice requires this matter to be
heard and decided by a full panel." A different three-member
panel of the board then heard the matter de novo and, in a
decision issued December 18, 2013, determined that the
requirements for lifetime revocation were met because the New
York offense of DWAI was substantially similar to the
Massachusetts offense of OUI and qualified as a prior OUI
6
conviction.3 The plaintiff again appealed, and a different
Superior Court judge affirmed the board's decision.
Discussion. As both issues presented are questions of law,
our review is de novo; however, we are aided by a thoughtful and
thorough decision of the trial court judge. After independently
considering the record and the applicable law, we reach the same
result.
1. Effect of guilty plea to DWAI. In assessing the impact
of the plaintiff's New York guilty plea on her licensure in
Massachusetts, we are guided by Bresten v. Board of Appeal on
Motor Vehicle Liab. Policies & Bonds, 76 Mass. App. Ct. 263, 266
(2010) (Bresten). The court in Bresten held that, pursuant to
G. L. c. 90, § 30B,4 the interstate compact on motor vehicle
convictions, even when an out-of-State conviction of driving
under the influence is denominated or described differently from
the Massachusetts offense of OUI, the registrar must give the
3
The board also determined that it had discretion to modify
or annul the registrar's decision, but declined to grant such
relief at that time, because the plaintiff had not shown extreme
hardship and, at the most recent hearing, had admitted to the
occasional use of alcohol. However, the board did state that
the plaintiff was allowed to reapply for relief on or after
January 1, 2015. As no issue is raised as to the propriety of
these aspects of the board's decision, we express no opinion on
them.
4
Of particular relevance here is G. L. c. 90,
§ 30B(III)(a)(1) and (2), relating, respectively, to out-of-
State offenses for motor vehicle homicide and driving under the
influence of alcohol or drugs.
7
"the same effect to conduct reported as if 'such conduct had
occurred in [Massachusetts],'" so long as the out-of-State
offense is "of a substantially similar nature" to OUI. Id. at
266.
The DWAI offense to which the plaintiff pleaded guilty is
codified in VTL § 1192.1, which states: "No person shall operate
a motor vehicle while the person's ability to operate such motor
vehicle is impaired by the consumption of alcohol." As
recognized by the New York Court of Appeals, the DWAI statute
"does not speak of degrees of impairment; it simply prohibits
the driving of a motor vehicle when the driver's 'ability to
operate such vehicle is impaired.'" People v. Cruz, 48 N.Y.2d
419, 426 (1979), quoting from VTL § 1192.1. The statute's
manifest purpose is to promote public safety by defining the
violation as driving a motor vehicle while there is any
alcoholic impairment.
Likewise, the Massachusetts OUI offense, G. L. c. 90,
§ 24(1)(a)(1), turns on whether the consumption of alcohol
diminished the driver's ability to operate a motor vehicle
safely, Bresten, supra at 268; again, the statute's manifest
purpose is to protect the public by penalizing drivers impaired
to any degree by such consumption. Under the reasoning of
Bresten, because both statutes require proof that the motor
vehicle operator's ability to operate safely has been affected
8
even slightly by alcohol, the New York DWAI offense is
substantially similar to the Massachusetts offense of OUI, and
qualifies as the prior OUI required for the imposition of
lifetime license revocation after a subsequent OUI resulting in
a fatality. See id. at 268-269.
The plaintiff attempts to distinguish Bresten on the ground
that, unlike the Colorado offense at issue in that case, the New
York DWAI offense is categorized as a "traffic infraction." See
VTL § 1193.1(a). Under VTL § 155, "[a] traffic infraction is
not a crime and the punishment imposed therefor shall not be
deemed for any purpose a penal or criminal punishment. . . ."
Thus, according to the plaintiff, because her guilty plea to
DWAI did not result in a criminal conviction, it is not
substantially similar to OUI and may not serve as a predicate
conviction for purposes of imposing a lifetime license
revocation.
The plaintiff's argument is not persuasive. New York's
treatment of the DWAI offense suggests that, regardless of its
label, it is criminal in character. Prosecutions for DWAI are
generally governed by the rules of criminal law, see People v.
Phinney, 22 N.Y.2d 288, 290 (1968), and the consequences of DWAI
are identified as "criminal penalties." See VTL § 1193. These
penalties are not insignificant; they include imprisonment
(albeit for no more than fifteen days), a fine, or both. See
9
VTL § 1193.1(a). In addition, as was the case here, a charge of
DWAI may be resolved by a plea of guilty and will be reported on
a "Certificate of Conviction."
Furthermore, the Massachusetts statutes directing the
registrar to rely on out-of-State convictions in enforcing the
Massachusetts licensing laws are not limited to convictions that
are designated as criminal in the State where the offense
occurred. At the time of the plaintiff's license revocation,
G. L. c. 90, § 24(1)(d) provided that an individual would be
considered "convicted" for purposes of various sections of G. L.
c. 90, § 24(1), if that individual "pleaded guilty or nolo
contendere or was found or adjudged guilty by a court of
competent jurisdiction" (emphasis supplied). The disposition of
the plaintiff's DWAI charge falls within that definition.5
Another statute, G. L. c. 90, § 22(c), also requires that,
in certain instances, the registrar must treat an out-of-state
"motor vehicle violation" as if it had taken place in
5
Because the plaintiff "pleaded guilty," her reliance on
the case of Souza v. Registrar of Motor Vehicles, 462 Mass. 227
(2012) (Souza), is unavailing. The court in Souza held that an
admission to sufficient facts was not a qualifying conviction
for purposes of imposing a three-year suspension for refusal to
submit to a breathalyzer test, pursuant to G. L. c. 90,
§ 24(1)(f)(1), because an "admission to sufficient facts" was
not a "guilty plea," and § 24(1)(d) did not state that an
individual who admits to sufficient facts would be considered
"convicted." Id. at 233-235. While it does not bear on the
present case, we note that the Legislature subsequently amended
the statute to include the phrase "admits to finding of
sufficient facts." See St. 2012, c. 139, § 98.
10
Massachusetts. As used in that section, the term "motor vehicle
violation" is not restricted to criminal violations; it is
defined as "a violation of law, regulation, by-law, or
ordinance, except a violation related to parking." Ibid.
Similarly, the interstate compact on motor vehicle convictions
broadly defines conviction to mean "a conviction of any offense
related to the use or operation of a motor vehicle that is
prohibited by state law, municipal ordinance, or administrative
rule or regulation." G. L. c. 90, § 30B(I)(c). The compact
does not require that the conviction be for an offense
denominated as criminal.
In short, whether a DWAI conviction is substantially
similar to an OUI conviction does not turn on whether DWAI is
labeled a criminal offense. As held in Bresten, supra, it turns
on the nature of the conduct that must be proved to establish
guilt. Id. at 268-269.
2. Withdrawal of prior decision. It is well-established
that "[i]n the absence of statutory limitations, administrative
agencies generally retain inherent authority to reconsider their
decisions." Moe v. Sex Offender Registry Bd., 444 Mass. 1009,
1009 (2005). Here, the stated reason for the withdrawal of the
August 16, 2013, decision reinstating the plaintiff's right to
operate with restrictions was that one of the three members of
the panel was unable to complete deliberations, and justice
11
required that the matter be heard and decided by a full panel.
There is nothing in the record to support the plaintiff's
intimation that the stated reason masked some irregularity. If
anything, the withdrawal of the decision had the salutary effect
of removing any doubt as to whether a decision signed and issued
by only two members of the board was compliant with board
procedures or quorum requirements. Moreover, even if a two-
member decision was permissible, the seriousness of the issue
presented militated in favor of a decision by a full panel. In
these circumstances, the order withdrawing the prior decision
and setting the matter down for a de novo hearing was well
within the inherent authority of the board, and was neither
arbitrary nor capricious.
Judgment affirmed.